The Greek Competition Law (Law 3959/2011) was recently amended by Law 4886/2022 (the “Amending Law”)1 . In addition to implementing Directive (EU) 2019/1 into Greek law, the Amending Law brought about significant changes in Greek competition law, both substantial and procedural. Among others:
1. New types of prohibited unilateral conduct
The Amending Law added a new article 1A to the Competition Law prohibiting (a) invitation to collude and (b) price signalling. Both prohibitions enter into force on 1 July 2022 and they are applicable to undertakings with a turnover of at least EUR50 million and employing at least 250 employees. More specifically:
a) Invitation to collude (article 1A(1) of the Competition Law)
Undertakings are prohibited from proposing, coercing, offering incentives or inviting in any way whatsoever another undertaking to participate in an agreement, decision by an association of undertakings or concerted practice having as its object the prevention, restriction or distortion of competition in the Greek market and consisting in:
- fixing prices;
- limiting or controlling production, supply, technical development or investment; and
- sharing markets or sources of supply.
b) Price signalling (article 1A(2) of the Competition Law)
Undertakings are prohibited from communicating information on prices, discounts, offers or credit with respect to products which they purchase or supply, if (a) such communication restricts effective competition on the Greek market, and (b) it does not constitute a “standard commercial practice”.
In determining whether effective competition is restricted, the following are taken into account:
- the level of individualization of the data;
- whether the data refer to future conduct;
- whether the data are publicly available or not;
- whether the communication forms part of a body of similar communications by the undertaking;
- whether there is a record of cartels in the same market or sector between the same undertakings;
- the degree of concentration of the relevant market.
Signalling is not considered as restrictive of competition, if it is addressed exclusively to the end users of the relevant products or services.
It remains to be seen how the HCC will interpret and apply this new provision, including the concept of “standard commercial practice” justifying price signalling. In any case, large undertakings exceeding the abovementioned thresholds should carefully review their relevant practices.
It is explicitly clarified in the law that, where the above types of conduct fulfil the conditions of application of articles 1(1) and (2) of the Competition Law or articles 101 and 102 TFEU, they will be assessed exclusively on the basis of those provisions. For example, this will happen if signalling amounts to an agreement, decision by an association of undertakings or concerted practice, in which case it will be assessed in accordance with the rules regarding exchange of competitively sensitive information.
2. No-action letters
Inspired by EU practice, the Amending Law added a new article 37A to the Competition Law providing for the issuance of no-action letters with respect to any type of agreements, concerted practices or decisions by associations of undertakings as well as with respect to unilateral conduct. Such no-action letters may be issued for reasons of public interest, such as in order to achieve targets of sustainable development, a situation of emergency not being a necessary prerequisite.
No-action letters are issued by the Chairman of the HCC following a relevant application by the undertaking and a recommendation by the General Directorate of Competition.The HCC Chairman’s no-action letters are not binding on the HCC or the Courts and they may be revoked in case of change of circumstances or if the facts on which they are based were inaccurate or misleading.
The HCC is expected to issue a decision setting out in more detail the criteria, conditions and procedure for the issuance of no-action letters.